You have requested our opinion regarding the constitutionality
of House Bill 578, presently pending before the 67th Legislature.
The bill would add section 35.06 to the Family Code, as follows,
in pertinent part:

Section 35.06. CONSENT FOR ABORTION.

(a) Except as provided by Section 35.03(a)(2) of this code,
and in cases of incest, a physician may not perform an abortion
upon a pregnant child unless the physician has received written
consent for the abortion from:

(1) the child upon whom the abortion is to be performed;
and

(2) either the person or persons authorized to consent
under Subsection (b) of this section or the judge of a court
having probate jurisdiction in the county in which the child
resides.

(b) If the judge of a court having probate jurisdiction in
the county of the child's residence does not consent to the
abortion under Subsection (f) of this section or if no
application for a judge's consent is filed, the following person
or persons must consent to the abortion under Subsection (a)(2)
of this section:

(1) the parent of the child, if the child has only one
parent and if no managing conservator, guardian of the person of
the child, or other custodian for the child has been appointed;

(2) one parent of the child, if the parent-child
relationship exists between the child and both parents, if no
managing conservator, guardian of the person of the child, or
custodian for the child has been appointed, and if one parent is
not available within a reasonable time to consent;

(3) both parents of the child if the parent-child
relationship exists between the child and both parents, if no
managing conservator of the child, guardian of the person of the
child, or custodian for the child has been appointed, and if both
parents are available within a reasonable time to consent; or

(4) the managing conservator, guardian of the person of the
child, or custodian for the child if a managing conservator,
guardian, or custodian has been appointed for the child.

. . . .

(d) The consent form must be received by the physician who
is to perform the abortion not later than 24 hours before the
abortion is performed.

(e) The consent form shall be kept by the physician for at
least two years from the date of the abortion or until the child
attains the age of fourteen, whichever is longer.

. . . .

(f) (5) The court shall determine if the child is of
sufficient maturity and ability to give an informed consent to
the abortion. If the court finds that she possesses sufficient
maturity and ability, the court shall consent to the abortion.
If the court determines that the child does not possess
sufficient maturity and ability, the court shall then determine
if the abortion is in her best interests. If the abortion is in
the best interests of the child, the court shall consent to the
abortion. The court shall make the court's findings and
conclusions in writing and a part of the record of the case.

(6) If the court does not consent to the abortion, the court
shall inform the child of her right of appeal to the court of
civil appeals. If the child has not previously asked for the
appointment of an attorney ad litem and the child indicates a
desire to appeal the court's ruling, the court shall appoint an
attorney ad litem at this time.

(7) The appeal shall be on the records and files of the
proceedings in the lower court and shall take precedence over
other appeals pending before the court. The appellate
proceedings shall be confidential.

(g) The decision to consent or withhold consent by a parent,
managing conservator, guardian of the person, or other legal
custodian shall be based on the best interests of the child.

(h) Before an abortion may be performed upon a child, the
physician shall certify that he has notified or that it was not
possible to notify the appropriate person or persons specified in
subsection (b) of this section of the proposed abortion. This
provision shall not apply if there is an emergency requiring
immediate action. The child seeking an abortion is required to
inform her attending physician, who has agreed to perform the
abortion, concerning where her parents, guardian, or other
appropriate persons specified in subsection (b) of this section
may be reached, in order to assist the physician in giving the
required notification. The physician is not required to notify
the person or persons specified in subsection (b) of this section
if it is determined by a court having probate jurisdiction that
such notification would not be in the best interests of the
child.

(i) A physician commits an offense if the physician performs
an abortion on a child to whom this section applies in violation
of subsections (a), (d), or (h) of this section. It shall be an
affirmative defense to prosecution under this section that there
existed an emergency in which complying with this section was not
medically feasible. (Emphasis added).

House Bill 578 speaks to two issues related to a pregnant
minor's right to an abortion--consent and notification, both of
which have been the subject of recent decisions of the United
States Supreme Court. In Planned Parenthood of Central Missouri
v. Danforth, 428 U.S. 52 (1976), the Supreme Court held that a
state had no authority to permit either parent of a pregnant
minor to exercise an absolute veto over the decision of the
physician and his patient to terminate the minor's pregnancy.
428 U.S. at 74. In Bellotti v. Baird, 443 U.S. 622 (1979), a
plurality of the court held that, in Massachusetts, the
constitutional right of a minor to seek an abortion was 'unduly
burdened by state-imposed conditions upon initial access to
court.' 443 U.S. at 648. The decision also discussed the issue
of parental notification:

. . . every minor must have the opportunity--if she so
desires--to go directly to a court without first consulting or
notifying her parents. If she satisfies the court that she is
mature and well enough informed to make intelligently the
abortion decision on her own, the court must authorize her to act
without parental consultation or consent. If she fails to
satisfy the court that she is competent to make this decision
independently, she must be permitted to show that an abortion
nevertheless would be in her best interests. If the court is
persuaded that it is, the court must authorize the abortion. If,
however, the court is not persuaded by the minor that she is
mature or that the abortion would be in her best interests, it
may decline to sanction the operation.

433 U.S. at 647-48.

Finally, in H. L. v. Matheson, 67 L. Ed. 2d 388 (1981), a
pregnant minor challenged a Utah statute which required the
physician performing the abortion to 'notify, if possible,' her
parents. A majority of the court upheld the Utah statute as to
this plaintiff, on the narrow ground of standing, inasmuch as
plaintiff did not allege either (1) that she was mature and well
enough informed to make intelligently the abortion decision on
her own; or (2) that, in any event, notification to her parents
would not be in her best interests. On the basis of a complaint
which omitted both of these allegations, the court held that the
statutory requirement of parental notification, 'as applied to
immature and dependent minors,' served a valid state interest.
67 L. Ed. 2d, at 399,401. Although the majority opinion
specifically avoided the question of the Utah statute's
constitutionality as applied to other pregnant minors, it is
clear that at least five members of the court, including two
concurring and three dissenting justices, would permit required
parental notification only in the event of a court ruling adverse
to the minor on the issues of (1) maturity and (2) best
interests.

Your first question is whether House Bill 578 violates the
constitutional right of privacy announced in Roe v. Wade, 410
U.S. 113 (1973), by prescribing that a physician may not perform
an abortion on an unmarried girl under 18 unless he receives
judicial, parental or custodial consent. In Bellotti v. Baird,
supra, the court said that:

If the State decides to require a pregnant minor to obtain
one or both parents' consent to an abortion, it also must provide
an alternative procedure whereby authorization for the abortion
can be obtained.

443 U.S. at 643. Section 35.06 furnishes just such an
'alternative procedure.' Judicial consent, standing alone, is
sufficient under section 35.06 to permit a pregnant minor to
obtain an abortion. Subsection (a)(2). Furthmore, judicial
consent is mandatory upon the court's affirmative finding on the
issues either of (1) maturity, or (2) best interests. Subsection
(f)(5). See Baird, 443 U.S. at 650. Thus, the 'alternative
procedure' prescribed by the statute entirely satisfies the
constitutional requirements imposed by the court in Baird. 443
U.S. at 643-47.

You also ask whether the statute's requirement of consent from
both parents has any effect upon our answer to your first
question. In Baird, the court said that, so long as the
'alternative procedure' described above is available to the
pregnant minor, 'the requirement of obtaining both parents'
consent' does not burden 'a minor's right to seek an abortion.'
Id. at 649.

Your third question inquires about the constitutionality of the
statute's use of the term 'reasonable time' in subsections (b)(2)
and (b)(3). In our opinion, in the context of an abortion
decision, 'reasonable time' is neither so vague nor so overbroad
as to render the statute invalid. The supreme court has
repeatedly emphasized 'the unique nature of the abortion
decision,' whose option 'effectively expires in a matter of weeks
from the onset of pregnancy.' Baird at 642. As the court noted
in H. L. v. Matheson, supra, 'time is likely to be of the essence
in an abortion decision.' 67 L. Ed. 2d at 400. We believe that
a court would view the 'reasonable time' language of section
35.06 within the framework of the need for an expedited
procedure. Accordingly, we do not believe that the term
'reasonable time' is either so vague or so overbroad as to render
section 35.06 unconstitutional.

Finally, you ask whether the language in the Powell plurality
opinion in Baird, with respect to alternatives to parental
consent, is controlling in light of the Stevens concurrence and
the White dissent. Although the language of the Baird plurality
opinion was adopted by only four members of the court, four other
members appear to have endorsed the concept of an 'alternative
procedure' outlined there and given effect in section 35.06. The
concurring opinion of Justice Stevens objected to what it viewed
as the plurality's approval of the judge's right of absolute veto
over the minor's decision to abort, even if he found in her favor
on the issue of maturity. Whatever the status of the Baird
plurality opinion in light of the majority opinion in H. L. v.
Matherson, supra, it is clear that section 35.06 satisfies
Justice Stevens' objections in Baird by requiring the judge to
consent to the abortion upon a finding favorable to the pregnant
minor on the issue of maturity. Thus, for purposes of your
inquiry regarding the constitutionality of the 'alternative
procedure' of section 35.06, we conclude that it is valid under
both the plurality opinion and the Stevens concurring opinion in
Baird.

You have also raised the question whether subsection (h) of
section 35.06 fully comports with constitutional requirements.
That provision requires a physician, before he may perform an
abortion upon a pregnant minor, to attempt to notify one of the
persons specified in subsection (b), e.g., either a parent or a
custodian, and to certify that he has made such an attempt. The
physician is exempted from this requirement only 'if it is
determined by a court having probate jurisdiction that such
notification would not be in the best interests of the child.'
Subsection 7(h).

The exception thus provides only one of the two means of
avoiding parental notification which a majority of the court
appears to favor. In Matheson, the concurring opinion of Justice
Powell, expressing the view of two members, declares:

In sum, a state may not validly require notice to parents in
all cases, without providing an independent decisionmaker to whom
a pregnant minor can have recourse if she believes that she is
mature enough to make the abortion decision independently or that
notification otherwise would not be in her best interests.
(Emphasis added).

67 L. Ed. 2d. at 405. The dissent in Matheson, representing the
view of three other justices, holds that mandatory parental
notice is unconstitutional per se, since 'it burdens the minor's
fundamental right to choose with her physician whether to
terminate her pregnancy.' Id. at 426. It thus appears that at
least five members of the court would find unconstitutional the
parental notification provision of section 35.06 in its present
form. In our opinion, this defect can be cured by altering the
language of subsection (h) to reflect Justice Powell's concern in
Matheson. So amended, the final sentence of subsection (h) would
provide:

The physician is not required to notify the person or person
specified in subsection (b) of this section if it is determined
by a court having probate jurisdiction that 1) the child seeking
the abortion objects to such notification and the court finds
that she possesses sufficient maturity and ability to make the
abortion decision independently; or 2) notification otherwise is
not in the best interests of the child.

With this caveat, we conclude that section 35.06 is
constitutional.

SUMMARY

The consent provisions of House Bill 578 are constitutional.
The parental notification provision would not be held
constitutional unless the bill were amended to permit a physician
not to notify a pregnant minor's parents whenever the appropriate
court finds that the pregnant minor objects to such notification
and has sufficient maturity to make the abortion independently;
or that notification is not otherwise in the best interests of
the minor.